SERIES 100 PRETRIAL INSTRUCTIONS
B. ADMONITIONS (120-124)
F 120 SERVICE PROVIDER FOR JUROR WITH DISABILITY (CCP 224(B))
TABLE OF CONTENTS
F 120 Inst 1 Duty Of Jurors To Report Misconduct By Service Provider Or Jurors
F 120 Inst 2 Service Provider: Specification of Non-CCP 224 Duties
Return to Series 100 Table of Contents.
F 120 Inst 1 Duty Of Jurors To Report Misconduct By Service Provider Or Jurors
*Add to CC 120 as follows:
Any juror who believes there has been a violation of these instructions by the service provider and/or another juror or jurors must inform me by immediately giving a written note to my clerk _______________ <name of clerk> reporting the incident to me. If the clerk is not available, give the note to the bailiff and inform the clerk about the note as soon as possible thereafter.
Points and Authorities
Any Juror—See FORECITE F 100.7 Inst 2.
Written Note—See FORECITE F 101.6 Inst 1.
Duty To Report Misconduct By Juror—See FORECITE F 101.6 Inst 1.
Duty To Report Misconduct By Service Provider—See People v. Cabrera (91) 230 CA3d 300, 303.
Identification Of Parties—See FORECITE F 100.2 Note 1.
NOTE: See also CLARAWEB Forum, Warnings (12/6/2005).
F 120 Inst 2 Service Provider: Specification of Non-CCP 224 Duties
*Modify CC 120
During trial, ________ <insert name or number of juror> will be assisted by (a/an) ________ <insert description of service provider, e.g., sign language interpreter>. The ________ <insert description of service provider> is not a member of the jury and is not to participate in the deliberations in any way other than as necessary to provide the the following services to ________ <insert name or number of juror>: Assist juror ______________ <insert name or number of juror> in communicating with the rest of you during deliberations and _________________<insert services to be performed e.g., assist in reading written jury instructions and exhibits; hearing playback of recordings, etc.>.
Points and Authorities
CCP 224(b) provides:
As used in this section, “service provider” includes, but is not limited to, a person who is a sign language interpreter, oral interpreter, deaf-blind interpreter, reader, or speech interpreter. If auxiliary services are required during the course of jury deliberations, the court shall instruct the jury and the service provider that the service provider for the juror with a disability is not to participate in the jury’s deliberations in any manner except to facilitate communication between the juror with a disability and other jurors.
CALCRIM 120 does not limit the service provider to facilitation of communication between the juror with a disability and other jurors but instead uses the phrase “necessary to provide the service.”
It is possible that CALCRIM needs for the service provider other than communication among jurors during deliberations such as assisting the impaired juror in reviewing written exhibits, written transcripts of testimony should they be provided, listening to playback of recordings, readback of testimony, etc.
These services should be provided if needed to allow the juror to fully participate in the deliberations. This instruction is required by the federal constitutional rights to due process and fair trial by jury (5th, 6th and 14th Amendments). “Constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly. [Citation.]” (U.S. v. Spock (1st Cir. 1969) 416 F2d 165, 182.) This means that each individual juror must fully and fairly deliberate and follow their conscientiously held beliefs in voting on a verdict during deliberations. (See generally Allen v. U.S. (1896) 164 US 492 [17 SCt 154; 41 LEd 528]; People v. Gainer (1977) 19 C3d 835, 842-47.) And, every jurors’ ability to read the written instructions is assumed. (See e.g., PC 1093 (f); People v. Cooley (1993) 14 CA4th 1394, 1397-1400; People v. Blakley (1992) 6 CA4th 1019; see also Annotation, Failure to comply with statute, constitutional provision, or court rule providing for giving instructions to jury in writing as prejudicial or reversible error, 115 ALR 1332 and Later Case Service.)
Moreover, even if CCP 224(b) is limited, counsel should be able to stipulate to the service provider’s participation in other necessary matters. (See People v. Valles (1979) 24 C3d 121 [counsel may stipulate to presence of alternate juror, but admonition must be given].)
However, any role beyond that specifically authorized by CCP 224(b) should be specified to avoid the possibility of undue influence. (Cf., Parker v. Gladden (1966) 385 US 363 [385 LEd2d 363; 87 SCt 468] [bailiff misconduct]; Dickson v. Sullivan (9th Cir. 1988) 849 F2d 403 [same]; People v. Hedgecock (1990) 51 C3d 395, 420 [judge should caution bailiffs regarding communications with jurors].)
Reference Note—See CLARAWEB Forum, Warnings (12/06/2005).
Identification Of Parties—See FORECITE F 100.2 Note 1.
WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case.
Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 5.6 [Extraneous Evidence]
FORECITE CG 7.1 [Right To Jury Consideration Of The Evidence]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
